Kelly v Levick

[2016] QMC 11

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Kelly v Levick [2016] QMC 11

PARTIES:

JUNE MARION KELLY
(Plaintiff)
v
DAVID LEVICK
(Defendant)

FILE NO/S:

M14/15

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

14 June, 2016

DELIVERED AT:

Bowen

HEARING DATE:

31 March 2016

MAGISTRATE:

S Young

ORDER:

1.   The Defendant is liable to the Plaintiff for defamation.

2.     Damages to be paid by the Defendant to the Plaintiff are in the sum of $10,000.00 plus interest of $784.74.

3.     I will hear the parties as to costs.

CATCHWORDS:

DEFAMATION – FACEBOOK – PUBLICATION – JURISDICTION – ‘GRAPE-VINE EFFECT’ – ASSESSMENT OF DAMAGES – MITIGATION.

Dow Jones v Gutnick [2002] 210 CLR 575

Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Reader’s Digest Service Pty Ltd v Lamb [1982] HCA 4

David Syme & Co v Canavan [1918] HCA 50

Lee v Wilson & Mckinnon [1934] HCA 60

Cassell & Co Ltd v Broome [1972] AC 1027

Cerutti & Anor v Crestside Pty Ltd & Anor [2014] QCA 33

Ratcliffe v Evans [1892] 2 QB 524

Uren v John Fairfax & Sons Pty Ltd 1966) 117 CLR 118

Scalia v Scalia [2015] SADC 172

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Crampton v Nugawela (1996) 41 NSWLR 176

Kilpatrick v Van Staveren [220] QCA 303

Roberts v Prendergast [2013] QCA 47

Beynon v Manthey [2015] QDC 252

Anderson v Gregory [2008] QCA 419

Hallam v Ross (no 2) [2012] QSC 407

Defamation Act  2005 (QLD)

Defamation Act 2005 (VIC)

COUNSEL:

Mr  S. Byrne instructed by Greenhalgh Pickard for the plaintiff.
Mr A. W. Collins instructed by Ruddy Tomlins & Baxter for the defendant.

Summary of facts

1. At 2:45pm on 24 November, 2014 the Defendant posted on his Facebook page: 

“June turned out to be a thieving, lying, money crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell”  (the “Post”).

1. At 6:33am on 25^th November, 2014, after being informed that the Post was generally viewable on his Facebook page, the Defendant says he removed the Post. 

1. The Defendant denies that the Post was defamatory of the Plaintiff.  

1. He further argues there is no evidence that the Post was downloaded in Queensland, the Plaintiff having particularised only two people to whom the post was allegedly published – one ordinarily resident in Melbourne, Victoria, the other in Durban, South Africa.  

1. As there had been no ‘download’ in Queensland (within the meaning the High Court expressed in Dow Jones v Gutnick [2002] 210 CLR 575) the Defendant contends there is no jurisdiction for this Court to determine the claim (the “jurisdictional issue”).

1. As on the Plaintiff’s case any publication occurred in Victoria and South Africa the Defendant argues this Court cannot find in favour of the Plaintiff as any cause of action exists within those jurisdictions (the “download issue”).

1. Details of the alleged publications only came to light during the course of the Plaintiff’s evidence…